Yalsburg and Yalsburg - [2019] FamCA 30

FAMILY COURT OF AUSTRALIA

YALSBURG & YALSBURG

[2019] FamCA 30

FAMILY LAW – CHILDREN – where the Court has previously made no finding of unacceptable risk in respect of either parent – where the mother holds entrenched views that the father has sexually abused the child – where the Court finds the mother’s current inability to genuinely support the child’s relationship with the father is a significant emotional risk to the child – where the Court finds it is in the best interests of the child to have a meaningful relationship with the mother – where the father and the ICL urge the Court to change the residence of the child – orders made for the child to live with the father.

Family Law Act 1975 (Cth) s 60CC

Yalsburg & Yalsburg [2018] FamCA 174

APPLICANT:

Mr Yalsburg

RESPONDENT:

Ms Yalsburg

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

10819

2016

DATE DELIVERED:

24 January 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

1 and 23 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms K Oakley

SOLICITOR FOR THE APPLICANT:

Catton & Tondelstrand Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Wilson QC

SOLICITOR FOR THE RESPONDENT:

KLM Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr B Dodd

INDEPENDENT CHILDREN’S LAWYER:

Ms Nicola Davies, Legal Aid Queensland

Orders

That all previous Orders be discharged.
That the father shall have sole parental responsibility for the child, B born … 2013 (“the child”), having consulted with the mother about decisions to be made in the exercise of parental responsibility and shall make a genuine effort to come to a joint decision with the mother. The father and the mother are not, however, required to consult with each other about the daily care of B.
That the child shall live with the father forthwith but by at least 12 noon on 25 January, 2019.
That the child shall spend time and communicate with the mother as agree in writing but failing agreement, as follows:

School term time
(a)From 25 January 2019 to 28 February 2019 the child shall spend no time with the mother, save that the father may, at his discretion, facilitate the child communicating by telephone with the mother at the father’s initiation.
(b)Commencing Saturday 2 March 2019 and for 8 consecutive Saturdays, for up to 2 hours supervised by and facilitated by [TT Group] as follows:
(i)The time of commencement shall be as available to the supervisor, but preferably between 10.00 am and 12 noon.
(ii)The parents shall share equally the costs of supervision.

(c)Commencing Saturday 27 April 2019 unsupervised time shall commence and shall proceed in the following manner:
(i)For 8 occasions from 9.00 am to 2.00 pm on 8 consecutive Saturdays;
(ii)Then for 8 occasions on 8 consecutive Saturdays from 9.00 am to 4.00 pm; and
(iii)Then commencing Saturday 24 August 2019 each alternate weekend thereafter from 9.00 am to 4.00 pm each Saturday and Sunday until the commencement of the 2020 school…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FamCA 30
Decision Date: 24 January 2019

CaseChat Overview and Summary

This matter concerned orders made by Baumann J regarding the parental responsibility, living arrangements, and time spent with a child, B, born in 2013. The dispute involved the father and mother of the child, with the court making detailed provisions for their future interactions and the child's care.

The court was required to determine the extent of parental responsibility to be allocated to each parent, the primary residence of the child, and the specific schedule for the child to spend time and communicate with the mother. This included establishing a phased approach to unsupervised time, outlining holiday arrangements, and setting parameters for telephone and special event communications. The court also addressed broader issues concerning the child's welfare, including parental conduct, attendance at school functions, and participation in counselling.

Baumann J ordered that the father have sole parental responsibility for the child, with an obligation to consult with the mother on significant decisions and make a genuine effort to reach joint decisions. The child was ordered to live with the father, with a detailed schedule for the child to spend time and communicate with the mother, commencing with supervised contact and gradually transitioning to unsupervised time. The orders also stipulated specific arrangements for telephone contact, holiday periods, and special occasions, with provisions for shared costs and communication methods. Furthermore, the court imposed injunctions restraining both parents from engaging in harmful conduct towards each other in the child's presence and mandated participation in counselling.

Orders

Orders of the court

That all previous Orders be discharged.

That the father shall have sole parental responsibility for the child, B born … 2013 (“the child”), having consulted with the mother about decisions to be made in the exercise of parental responsibility and shall make a genuine effort to come to a joint decision with the mother. The father and the mother are not, however, required to consult with each other about the daily care of B.

That the child shall live with the father forthwith but by at least 12 noon on 25 January, 2019.

That the child shall spend time and communicate with the mother as agree in writing but failing agreement, as follows:

School term time

(a) From 25 January 2019 to 28 February 2019 the child shall spend no time with the mother, save that the father may, at his discretion, facilitate the child communicating by telephone with the mother at the father’s initiation.

(b) Commencing Saturday 2 March 2019 and for 8 consecutive Saturdays, for up to 2 hours supervised by and facilitated by [TT Group] as follows:

(i) The time of commencement shall be as available to the supervisor, but preferably between 10.00 am and 12 noon.

(ii) The parents shall share equally the costs of supervision.

(i) For 8 occasions from 9.00 am to 2.00 pm on 8 consecutive Saturdays;

(ii) Then for 8 occasions on 8 consecutive Saturdays from 9.00 am to 4.00 pm; and

(iii) Then commencing Saturday 24 August 2019 each alternate weekend thereafter from 9.00 am to 4.00 pm each Saturday and Sunday until the commencement of the 2020 school year.

(d) The regime of time the child shall spend with the mother during 2019 shall be maintained during 2019 school holiday periods.

Commencing with the school recommencing in January 2020, the child shall spend time and communicate with the mother as agreed in writing but failing agreement as follows:

(a) During school terms, One and Two, each alternate weekend from 9.00 am Saturday to 4.00 pm Sunday; and

(b) During school terms, Three and Four, from after school Friday to 4.00 pm Sunday.

Commencing with the school recommencing in January 2021 and thereafter, the child shall spend time and communicate with the mother as agreed in writing but failing agreement during school terms, each alternate weekend from after school Friday, to before school Monday, extended to before school Tuesday if Monday is a public holiday or pupil free day.

School holiday time

The child shall commence spending time with the mother during school holidays in 2020 and thereafter as follows:

(a) For the end of Term One, Two and Three school holidays in 2020 as follows:

(i) For 3 days (2 nights) during the end of Term One and Term Two 2020 school holidays as agreed, and if not agreed, then comprising the middle weekend.

(ii) For the end of Term Three 2020 school holidays for 4 days (3 nights) as agreed, and if not agreed, then comprising the middle weekend.

(b) For the end of Term Four 2020 school holidays for 1 week in December 2020 and 1 week in January 2021 as agreed.

(c) Commencing the 2021 school year and thereafter the child shall spend half of each school holiday period with the mother, being the first half in 2021, and odd years thereafter and the second half in 2020 and even years thereafter.

Telephone time

The child shall spend time with and communicate with the mother by telephone, Facetime or Skype as follows and on the following terms:

(a) From 2 March 2019 each Wednesday and non-contact Saturday between the hours of 6.00 pm and 6.30 pm unless otherwise agreed and:

(i) For 2019, the father shall be permitted to monitor telephone calls between the child and the mother by placing the call on speaker phone; and

(ii) For 2020 and thereafter the telephone calls shall be in private, unrecorded and uninterrupted.

(b) The mother shall initiate the calls to the child by dialling the father’s nominated telephone or, if by Skype, nominated Skype facility and the father shall ensure the child is available to receive the call.

(c) If the child is not available at the designated time to receive the call, the father shall with as much notice as is reasonably possible, advise the mother by text message of the reason why the child is unavailable and nominate an alternate time within a period of 24 hours when the child will be available.

Special event time

Notwithstanding prescribed arrangements in this order, the child shall spend time or communicate with the mother:

(a) By telephone, Facetime or Skype on his birthday on … 2019;

(b) By telephone, Facetime or Skype on Mother’s Day 2019; and

10.

From the commencement of 2020 and thereafter:

(a) On Mother’s Day, when no otherwise scheduled to spend time with the mother under these orders, between 9.00 am and 4.00 pm;

(b) On the child’s birthday, when not otherwise scheduled to spend time with the mother, between 9.00 am and 12 noon (for a non-school day) and 3.30 pm to 6.00 pm (for a school day); and

(i) For Christmas 2020, from 4.00 pm Christmas Eve until 1.00 pm Christmas Day; and

(ii) From Christmas 2021 and thereafter noting that by this time the child shall be spending half of the end of year school holiday period with each parent, the parent who exercises the first half of the school holidays shall have the child with them for Christmas Day, but shall facilitate the child speaking by telephone, Facetime or Skype with the other parent on Christmas Day.

11.

The child shall spend Father’s Day with the father each year, and if Father’s Day falls on a weekend when the child is scheduled to spend time with the mother, then the time with the mother shall be suspended between 9.00 am to 4.00 pm on that particular Father’s Day.

Other Orders

12.

That to facilitate the child’s time with the mother changeovers shall occur at Suburb PP McDonalds if not otherwise ordered to take place at the child’s school.

13.

That subject to the conditions imposed by the child’s schools, this Order authorises both parents to attend school functions to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.

14.

That each parent shall ensure that the child attends all educational, sporting and hobby events when the child is with that parent in all reasonable circumstances.

15.

That the parents shall keep each other informed of matters concerning the child via a communication book that travels with the child at the commencement and conclusion of any time spent with the child on all aspects of the care, welfare and development of the child, such as schooling, extra curricula activities, medical issues and any other issues that may arise with respect to the child.

16.

That the parents shall keep each other informed at all times of their residential address and contact telephone number and shall notify the other parent at least seven (7) days prior to relocating their residence beyond a twenty (20) kilometre radius from where they currently reside.

17.

That the parents be restrained and an injunction issues restraining the parents from:

(a) physically disciplining the child;

(b) discussing; questioning or otherwise encouraging the child to discuss adult issues of conflict raised during the trial, and in particular past allegations of alleged abuse whether sexual or otherwise;

(c) denigrating or making hurtful comments about the other parent and the other parent's family and partners in the presence or hearing of the child; and

(d) recording by phone or other device the words or actions of the child other than playing, and in particular, for the purpose of establishing alleged disclosures or negative remarks about the other parent.

18.

That the child shall attend upon Dr E and the mother and the father shall participate in the counselling/therapy as recommended by the treating practitioner with the costs of Dr E in respect of consultations for the child and father to be paid by the father.

19.

That the Independent Children’s Lawyer be at liberty to provide the Court’s Reasons for Judgment to the child’s treating practitioner, the counsellors for the mother and the father, to the Department of Child Safety, Youth and Women and to the Queensland Police Service.

20.

That 3 months from the date of this order the Independent Children’s Lawyer shall be discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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